Companies (Fees) Regulations (Amendment)

EXPLANATORY STATEMENT

Statutory Rules 1989 No. 126

Issued by the Authority of the Attorney-General

Companies (Fees) Regulations (Amendment)

Subsection 5(1) of the Companies (Fees) Act 1981 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing fees, not in any case exceeding $1,000, for the purposes of subsection 4(1) of the Act. Subsection 5(2) of the Act provides that the power of the Governor-General to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council for Companies and Securities (the Council).

2. The Council was established under an Agreement between the Commonwealth and the States, executed on 22 December 1978 (the Agreement), that provides the framework for a co-operative Commonwealth-State scheme for a uniform system of law and administration in relation to company law and the regulation of the securities and futures industries in the six States, the Australian Capital Territory and the Northern Territory of Australia.

3. Under subclause 45(1) of the Agreement, the Council may consider a proposal for the amendment of regulations made under the Commonwealth Acts enacted for the purpose of the co-operative companies and securities scheme. Should the

Council approve any draft amending regulation which gives effect to such a proposal, the Commonwealth is then required, under subclause 45(2) of the Agreement, to submit the draft regulations to the Federal Executive Council for making by the Governor-General.

4. The accompanying regulations are in accordance with a resolution made by the Council.

5. The purpose of the regulations is to amend the Companies (Fees) Regulations (the Regulations) by substituting a new Schedule of fees for the Schedule of fees that came into operation on 1 July 1988.

6. Details of the accompanying regulations are as follows.

Regulation 1: Commencement

7. This regulation prescribes 1 July 1989 as the date on which the Regulations will come into operation.

Regulation 2: Schedule

8. This regulation inserts in the Regulations a new Schedule of fees that are payable for the purposes of subsection 4(1) of the Act. Subsection 4(1) provides that there shall be paid to the Commonwealth in respect of-

(a) the lodgment of documents with the National Companies and Securities Commission (the Commission) under the Companies Act 1981:

(b) the registration of documents under that Act or the inspection or search of registers kept by, or documents in the custody of, the Commission under that Act;

(c) the production by the Commission, pursuant to a subpoena, of any register kept by, or document in the custody of, the Commission under that Act;

(d) the issuing of documents or copies of documents, the granting of licences, consents or approvals or the doing of other acts or things by the Ministerial Council, or the Commission under that Act;

(e) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under that Act; and

(f) the submission to the Commission of documents for examination by the Commission,

such fees (if any) as are prescribed.

9. The new Schedule provides for the following levels of fees:

10. To obtain the new level of fees, the old fees were increased by 7.7% (being the increase in the Consumer Price Index between the December quarter of 1987 - on which the old fees were based - and the December quarter of 1988) and rounded as follows:

• below $50 - to the nearest dollar;

• between $50 and $200 - to the nearest $5; and

• over $200 - to the nearest $10.

11. The following fees were not determined in accordance with the formula set out above:

• The fees of $1,000 payable on the submission of a proposed prospectus or a proposed statement under section 170 of the Companies Act 1981 (i.e. offering prescribed interests - such as units in a fixed trust - to the public) have not been increased

because the Act imposes an upper limit of $1,000 on the level of fees that may be prescribed.